December 5, 2011

The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:

Fourth Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 5, 2011)

As I have noted repeatedly in prison posts with other federal sentencing data runs, these data showcase the enduring reality that federal prosecutors, not federal judges, continue to be the primary driving force behind below-range sentences. The latest quarter of data reveal a government-sponsored below-guideline sentencing rate of 26.2% and a judge-initiated below-guideline sentencing rate of 17.1%. In other words, during the latest quarter for which we have sentencing data, federal district judges decided to go below the guidelines on their own in only about one out of every six case, but they went below the guidelines upon a recommendation by prosecutors in more than one out of every four cases.

These cumulative data also show that for certain types of offenses, most notably child pornography and money laundering offenses, a within-guideline sentence is much less likely than a below-guideline sentence. The data indicate that in these categories and a few others, only roughly about one in three offenders get a within-guideline sentences while nearly two-thirds get a below-guideline sentence. (That fact alone would seem to provide a sound reason for the US Sentencing Commission to consider revising these guidelines downward; but, any downward adjustment in the guidelines is always much easier to propose than to make happen.)

Comments

Of course, another way to look at these numbers is to say that if we look at the 73.8% of cases in which there is no government sponsored below-guideline sentence, courts impose below guidelines sentences "on their own" in better than 20% of that universe (i.e., 17.1% is higher than 20% of 73,8). Just a thought.

Posted by: anon | Dec 6, 2011 7:14:12 AM

That's a fair and important point, anon, though it still means that after prosecutors have decided in more than one of every four cases that it wants a below-guideline sentence, judges decide in one of every five of the remaining cases that a below-guideline sentence is "sufficient but not greater than necessary" to achieve the statutory sentencing purposes set out by Congress. (Those say judges decide in roughly one out of every 40 of the remaining cases that an above-guideline sentence is "sufficient but not greater than necessary" to achieve the statutory sentencing purposes set out by Congress.)

Though I can state with confidence the formal legal basis for all judicial decisions to impose a below-guideline sentence because this decision is controlled by a statutory structure in the SRA, I cannot state with confidence the formal legal basis for many prosecutorial decisions to impose a below-guideline sentence because this decision often is NOT controlled by any statutory or even guideline structure. Some (but not all) fast-track and SA departures urge by government have some controlling (but not really appealable) law that governs, but in 4.4% of all cases the feds urge a below-guideline sentence for reasons that are, at least as a formal legal matter, completely mysterious. As in Blago's case, I assume the reason for these below-guideline recommendations is a prosecutorial judgment that the recommended guideline range is too severe.

Another way to mine this data is to take out the SA (11.2%) and fast-track reductions (10.8%) in the FY11 data, and we are left with a pool of just over 78% of the caseload. In this group, prosecutors still think the guideline range is too severe in 4.4% of cases and judges think it too severe in 17.2% of cases, adding up to 21.6% of the caseload in that pool. So, in roughly 30 of 100 cases AFTER taking out SA and FT credits, the prosecutor and/or the judge thinks the guideline is too severe (whereas in only 2 of those 100 is there the view that the guideline is not severe enough).

Of course, we we to take out the nearly 400 CP and white-collar offenses (nearly 5% of total FY11 docket) in which within-guideline sentencing happen in only roughly 1 of every three cases, the within-guideline sentencing rate in all other cases goes up somewhat significantly. Lies, damn lies and statistics...

Posted by: Doug B. | Dec 6, 2011 9:36:09 AM

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